“As long as no decision has been given against the 26th Constitutional Amendment, it remains valid,” remarked Justice Aminuddin Khan during the hearing of petitions challenging the 26th Amendment before the constitutional bench of the Supreme Court of Pakistan.
He further observed, “It is surprising to me that lawyers, after concluding their arguments, say to set aside the 26th Amendment — will such arguments be made here?”
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Justice Jamal Khan Mandokhail remarked, “We are only asking whether the bench should be constituted according to personal wishes or according to the law. This is a first impression case under Article 191, so we must examine it carefully. The Parliament has the authority to amend the Constitution — we are only examining whether this particular amendment is constitutional or not.”
Justice Muhammad Ali Mazhar stated, “We have the jurisdiction to strike down a constitutional amendment — this power falls under Article 191-A. If we lack jurisdiction, then we cannot hear this case. This is a first impression case and an unprecedented situation in the country. We must determine whether the committee formed on 31 October 2024 had the authority to decide on the formation of a full court or not. We must also examine whether, under the Constitution, the committee’s decision is binding on all of us. This case is unique because, for the first time, a constitutional amendment has divided the Supreme Court’s jurisdiction into two branches. The same bench, constituted under Article 191-A, is being asked to disregard Article 191-A and form a full court or any other forum. That is a difficulty — which is why we have been asking this question repeatedly. If we order the formation of a full court, would that not violate Article 191-A(3)?”
Justice Ayesha A. Malik remarked, “Article 191 does not abolish the overall jurisdiction of the Supreme Court. The Court’s jurisdiction remains intact. Article 191-A states that a constitutional bench shall exercise the Supreme Court’s jurisdiction, but that jurisdiction belongs to the Supreme Court as an institution, not to any specific bench.”
Justice Naeem Akhtar Afghan asked, “Why are the petitioners not placing their trust in this bench? If they do trust us, then they should begin their arguments on the merits so that we can decide whether the 26th Amendment is constitutional or unconstitutional.”
Justice Shahid Bilal Hassan observed, “The petitioners want this bench to ignore Article 191-A and, through an interim order, grant them the major relief they are seeking.”
The hearing was conducted under the chairmanship of Senior Supreme Court Judge Justice Aminuddin Khan An eight-member Supreme Court bench headed by Justice Aminuddin Khan — including Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal Hassan — heard 37 petitions on Thursday challenging the 26th Constitutional Amendment.
The petitions were filed under Article 184(3) of the Constitution by the Chairman of Pakistan Tehreek-e-Insaf (PTI), the Sunni Ittehad Council, Amir Jamaat-e-Islami Engineer Hafiz Naeem ur Rehman, Sardar Akhtar Jan Mengal, the Presidents of the Lahore High Court Bar Association, Lahore Bar Association, Karachi Bar Association, Islamabad High Court Bar Association, and others including the Balochistan Bar Council and Balochistan High Court Bar Association.
The hearing was broadcast live on the Supreme Court’s official YouTube channel.
At the start of proceedings, advocate Shahid Jameel Khan, counsel for Mustafa Nawaz Khokhar, came to the rostrum and said that the Registrar had raised objections to his petition. He explained that his plea sought enforcement of the decision made on October 31, 2024, by the committee formed under the Supreme Court (Practice and Procedure) Act, 2023.
Justice Aminuddin Khan, addressing Shahid Jameel, said the court was presently hearing objections to his petition. Shahid Jameel responded that the matter was already judicially settled and that objections could be heard in court. He further argued that the Registrar does not have the authority to exercise judicial powers.
Justice Jamal Mandokhail noted that Shahid Jameel’s main plea was to have the case fixed before a Full Court, which is separate from the petitions challenging the 26th Amendment.
Shahid Jameel said a committee decision exists that has not been struck down by any forum, and it is for the court to decide whether to implement it. “This is a crucial issue,” he said, promising to give arguments with reference to specific dates.
Justice Ayesha A. Malik asked how many other petitioners had raised the same point, noting that Advocate Uzair Karamat Bhandari had included the committee’s letter and decision in his petition.
Justice Aminuddin told Shahid Jameel, “We will hear you at the end.”
Justice Mandokhail then asked him when he was leaving and returning, suggesting, “You’ll be away for 8–10 days, go and come back fresh. The bench won’t be available anyway, so we permit your absence.”
Justice Aminuddin clarified that the Court would not be hearing lawyers via video link.
When Advocate Uzair Karamat Bhandari, representing the Sunni Ittehad Council, began his arguments, he stated that his request was for a Full Court.
Justice Syed Hasan Azhar Rizvi asked whether he meant a 16-judge or 24-judge Full Court.
Justice Aminuddin Khan asked, “Is your request that we issue an order to form a Full Court — of 15, 16, or 24 judges — or that we enforce the committee’s decision?”
Justice Mandokhail said, “The committee had recommended a Full Court.”
Justice Aminuddin, addressing Bhandari, remarked: “I hope you will argue based on logic and law. Lawyers usually say at the end to set aside the 26th Amendment — that surprises me. Are those the arguments you plan to make?”
Uzair Bhandari responded: “Judges and lawyers are on the same side. If the judges decide the amendment is valid, we will accept it. We are all here because we believe something wrong has happened with this amendment, weakening the institution.”
Justice Mandokhail noted: “First, we must determine who has the authority to hear this petition.”
Justice Shahid Bilal Hassan told Bhandari to read his petition: “You’ve asked for the case to be heard before a Full Court — define what a Full Court means and read Article 191.”
Uzair Bhandari asked: “Can a Full Court be constituted?”
Justice Mandokhail replied: “We just want to know — will benches be formed according to wishes or according to law?”
Bhandari said: “According to law. The Full Court is never created; it already exists — it just needs to be convened. In this case, a Full Court can be formed. The question is, who convenes it? The decision of the committee under the Supreme Court (Practice and Procedure) Act 2023, dated October 31, 2024, must be followed. If implemented, then the Full Court existing on that date will hear the case.”
Justice Muhammad Ali Mazhar asked, “Which committee decision are you referring to?”
Bhandari replied: “The committee formed under Section 2 of the Supreme Court (Practice and Procedure) Act, 2023.”
He added: “If this bench believes the October 31 committee decision cannot be implemented, then the Full Court should be constituted through a judicial order. As to how many judges should sit — if the committee’s decision is enforced, then the judges who were serving on October 31 should sit. If not, then all 24 current judges should sit.”
Justice Aminuddin Khan asked: “Will this bench enforce the committee’s decision?”
Bhandari answered: “Yes, this bench. The decision was made by a legally valid body.”
He continued: “If this bench issues such an order, no one will defy it. After the 26th Amendment, it would be strange for newly appointed judges to decide the validity of their own appointments — though nothing prevents them from sitting in a Full Court.”
Justice Mandokhail asked: “Can we eight judges sit as a Full Court? The 26th Amendment gives us additional responsibilities, just as six or seven judges from High Courts have been given additional duties — what’s the difference between them and us?”
Bhandari replied: “If you don’t implement the October 31 committee decision, then there is no issue with those judges sitting in a Full Court.”
Justice Muhammad Ali Mazhar said: “We have to determine whether the October 31, 2024, committee even had the authority to decide on forming a Full Court — and whether its decision is constitutionally binding on all of us.”
Bhandari insisted that the petitions should be heard by a Full Court.
Justice Mazhar asked: “Under the committee’s decision, or independently?”
Bhandari replied: “Both ways.”
He added: “The operation of the law cannot be suspended — and I’m not asking for that. If the law is suspended, then this bench can’t hear cases like the super tax case either.”
Justice Aminuddin Khan remarked: “Until the amendment is struck down, it remains valid.”
Justice Muhammad Ali Mazhar concluded: “This bench has been constituted under Article 191-A.”
Justice Musarrat: How can we ignore this? If we disregard Article 191-A, then there would be no issue with the formation of a constitutional bench — we would simply be treated as a regular bench. We have been asking this question for several hearings now, to every lawyer: how can we just ignore it? Under the amendment, all constitutional cases have been transferred to the constitutional bench.
Justice Musarrat Hilali remarked that they are sitting as a constitutional bench and have been directed to hear the 26th Amendment case. She questioned: “Do we have the authority to form benches or a full court? Is that a constitutional matter?”
Advocate Uzair Bhandari argued that Article 191-A is part of the Constitution, and the question before the Court is whether it is constitutionally valid or not.
Justice Muhammad Ali Mazhar stated that this is a case of first impression — for the first time, an amendment has divided the Supreme Court’s jurisdiction into two branches. “A bench formed under Article 191-A is being asked to ignore that very Article and proceed to form a Full Court or some other bench. This is difficult, which is why we’ve been asking this question for days.”
Justice Shahid Bilal Hassan observed that the petitioners want the Court to ignore Article 191-A and grant them major interim relief.
Advocate Bhandari suggested that this question should be decided by the Full Court.
Justice Muhammad Ali Mazhar added that Article 191-A is part of the Constitution, and the Court has the power to review constitutional amendments. “At this stage, we are not saying whether we will accept or reject your petition. We will decide on merit after extensive arguments. We can strike down a constitutional amendment if it’s unconstitutional — that is within our jurisdiction under Article 191-A. But if we don’t have jurisdiction, we cannot hear this case. This is a case of first impression and a unique situation in the country.”
Justice Jamal Mandokhail stated that since this is a first-impression case under Article 191-A, it needs to be carefully examined. “We need to determine whether the constitutional bench has jurisdiction, and if it does, whether the Full Court also has jurisdiction — or if both do, or only one.”
Advocate Bhandari replied that both have jurisdiction, but “the question of this bench’s jurisdiction cannot be decided until Article 191-A itself is decided. If it’s constitutional, this bench has jurisdiction; if not, it doesn’t.”
Justice Mandokhail responded: “If both have jurisdiction, then let’s proceed directly — if the authority exists, refer it accordingly.”
Advocate Bhandari said: “I’m trying to remove the obstacle created by Article 191-A.” He noted that “male judges have said that Article 191-A is binding, while the female judges haven’t commented yet.”
Justice Musarrat Hilali humorously remarked: “The ladies have already understood the issue.”
Justice Mandokhail added: “The women judges are more intelligent than I am.”
Advocate Bhandari quipped: “They say if you want something said, ask a man; if you want something done, ask a woman.”
Justice Naeem Akhtar Afghan said: “A separate forum has been created here.”
Justice Mandokhail commented: “Parliament has the power to amend; we’re determining whether the amendment is constitutional or not.”
Justice Muhammad Ali Mazhar asked: “If other judges’ jurisdiction has ended, how can we grant new jurisdiction?”
Justice Mandokhail explained: “Previously, all benches had jurisdiction under Article 184(3). Then, under the Supreme Court (Practice and Procedure) Act, that power was given to a five-member bench. Now, under the 26th Amendment, it’s been given to the constitutional bench. So, if we form a Full Court, will it have jurisdiction, or will the existing benches lose theirs?”
Justice Ayesha Malik clarified: “Article 191 does not eliminate the Supreme Court’s jurisdiction. The power of jurisdiction rests with the Supreme Court itself. Article 191-A merely says that the constitutional bench will exercise the Supreme Court’s jurisdiction. Jurisdiction belongs to the Court as a whole, not to a specific bench.”
Justice Mandokhail asked: “Benches are formed under rules, not under the Constitution. Is there a difference between having jurisdiction and exercising jurisdiction?”
Advocate Bhandari said: “Judicial power can never be taken away.”
Justice Muhammad Ali Mazhar added: “No one is denying the Supreme Court’s jurisdiction. The High Court isn’t hearing this case — the Supreme Court is. Under Article 191-A, constitutional cases will be heard by the constitutional bench. We are the Supreme Court.”
He then asked: “If we issue an order to form a Full Court, would that not violate Article 191-A(3)?”
Justice Naeem Akhtar Afghan questioned: “Why don’t the petitioners trust this bench? If you do, then begin your arguments on merit so we can decide whether the 26th Amendment is constitutional or not.”
The petitioner’s counsel argued that “the amendment does not provide a proper mechanism for the Judicial Commission to pick and choose judges for nomination.”
Justice Afghan noted: “That relates to the merits of the case.”
Justice Ayesha Malik observed: “If we say that only judges nominated under Article 191-A can hear constitutional cases, then the Supreme Court’s jurisdiction to hear such cases would effectively rest with the Judicial Commission — it would decide who is nominated or not. If the Commission decides not to nominate anyone, and thus there’s no constitutional bench, can the Supreme Court, under Article 184(3), still take up an urgent constitutional matter? Or would the Court say it cannot proceed because no constitutional bench exists? Would constitutional functions come to a halt, or would the Supreme Court still be able to hear the matter?”
Advocate Bhandari replied: “The Supreme Court will hear the matter.”
Justice Ayesha Malik further asked: “If we say today that a Full Court cannot be formed, would that mean that in the future, a Full Court could never be formed? Then it would depend entirely on the Judicial Commission — how many judges it nominates for the constitutional bench. That would mean the protection of people’s rights would lie in the hands of the Commission, deciding who joins the bench and who doesn’t. The Full Court always exists.”
The Court adjourned further hearings until November 10, stating that proceedings will continue subject to bench availability. Advocate Uzair Karamat Bhandari will continue his arguments at the next hearing.